186 PR on different occupation than 457 visa

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186 PR on different occupation than 457 visa


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Old 03-04-2017, 10:30 PM
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186 PR on different occupation than 457 visa

Hi,

I have been in Sydney on a 457 visa on a 'sales and marketing manager' occupation for the last 10 months.
I'm a GM Digital Marketing with a bachelor degree and 10 years of experience.
My employer agreed to nominate met for a 186 PR (direct entry), but due to the weird AIM requirements I will most probably not pass the skills assessment for Sales and marketing manager (not reporting directly to CEO, reporting lines are not exactly as requested).
However, I can easily pass the marketing specialist skills assessment, the question then is will immigration reject/accept my PR application on this occupation while my 457 visa is on sales and marketing manager?

Any advice, opinion or sharing of a similar experience will be much appreciated.


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Old 03-04-2017, 11:19 PM
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Under the sc. 186 Temporary Residence Transition stream the nominated position must be the same as the position held while on a sc. 457 visa.

Under the sc. 186 Direct Entry stream there is no such requirement.

The two key issues I see:

You must keep working in the same occupation as long as you remain on your current sc. 457 visa.

You and the sponsor must somehow make the case for the new occupation, as the business would no longer employ you as a sales and marketing manager (plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation), but a marketing specialist( (identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services) instead.

These are very different occupations.

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Old 03-05-2017, 07:21 AM
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Quote:
Originally Posted by CCMS View Post
Under the sc. 186 Temporary Residence Transition stream the nominated position must be the same as the position held while on a sc. 457 visa.

Under the sc. 186 Direct Entry stream there is no such requirement.

The two key issues I see:

You must keep working in the same occupation as long as you remain on your current sc. 457 visa.

You and the sponsor must somehow make the case for the new occupation, as the business would no longer employ you as a sales and marketing manager (plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation), but a marketing specialist( (identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services) instead.

These are very different occupations.
Thanks!

My occupation and organizsational function won't change and I'm going through the direct entry stream.

Can the organisation make the case for the new occupation when lodging the nomination?
Can the case be the fact I'm not going to pass the sales and marketing manager skills assessment because of the AIMs extremely specific criteria? Which by the way will probably be impossible to answer for all marketing managers unless they're CMO level.

Thanks


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Old 03-05-2017, 09:18 PM
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Quote:
Originally Posted by NHLinden View Post
Thanks!

My occupation and organizsational function won't change and I'm going through the direct entry stream.
How can you argue that a sales and marketing manager does the same job as a marketing specialist? They are quite different occupations. The way I read it , the marketing manager would actually be in charge of the marketing specialist(s).

Quote:
Originally Posted by NHLinden View Post
Can the organisation make the case for the new occupation when lodging the nomination?
Of course they could, if that role actually assists as a separate role to that of marketing manager. It would be vital to have a look at the original 457 nomination and visa application first though, as well as the detailed job descriptions for the two separate roles. If that is going to work would depend on many factors. Personally I would be weary of re-nominating someone for a less senior role.

Quote:
Originally Posted by NHLinden View Post
Can the case be the fact I'm not going to pass the sales and marketing manager skills assessment because of the AIMs extremely specific criteria? Which by the way will probably be impossible to answer for all marketing managers unless they're CMO level.

Thanks
I don't think that is a good idea and it wouldn't carry any weight anyway. You basically would be saying that you can't actually meet the professional standards for the job you have been sponsored for.

The other option is to wait until you have worked for the employer for 2 years and apply under the Temporary Residence Transition stream, as no skills assesment wil be required.

Please note that these are general observations only, based on the very limited information provided. To get proper advice on this, you'd really need to get a professional with access to all the relevant information to have a look at this.

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Last edited by CCMS; 03-05-2017 at 09:26 PM.

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Old 03-06-2017, 12:51 AM
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The other option is to wait until you have worked for the employer for 2 years and apply under the Temporary Residence Transition stream, as no skills assesment wil be required.

Quote:
Please note that these are general observations only, based on the very limited information provided. To get proper advice on this, you'd really need to get a professional with access to all the relevant information to have a look at this.


I agree.

Some people dig their own graves by fishing around until they receive the answer they want.

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Last edited by wrussell; 03-06-2017 at 12:56 AM.

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Old 03-06-2017, 01:14 AM
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Quote:
Originally Posted by wrussell View Post
The other option is to wait until you have worked for the employer for 2 years and apply under the Temporary Residence Transition stream, as no skills assesment wil be required.



I agree.

Some people dig their own graves by fishing around until they receive the answer they want.
Too true, sooner or later someone will tell you what you want to hear. Employer sponsored cases can be complex. Without knowing a lot more about the business, the actual position and the applicant's qualifications and work experience,you can't really provide any specific advice.

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Old 03-06-2017, 04:06 AM
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Quote:
Originally Posted by CCMS View Post
Too true, sooner or later someone will tell you what you want to hear. Employer sponsored cases can be complex. Without knowing a lot more about the business, the actual position and the applicant's qualifications and work experience,you can't really provide any specific advice.
Thank you both.

Don't feel there was a need to 'gang up' on me...and I certainly wasn't fishing around.

I'm actually tired (financially) of meeting immigration agents/lawyers (met 4 different ones) who won't give me a straight answer after paying them consultation fees unless I pay them for the full package (thousands of $$).

I came to this forum hoping someone was in my position before and could share some specific details.

I am a sales and marketing manager, I do direct and decide on marketing strategies and budgets.
However, due to increased hierarchy criteria from the AIM it would oddly enough seem I'm not qualified to pass the skill assessment for the very same occupation I have a 457 visa for.

This is the only reason I'm even considering the marketing specialist route.

My employer won't change the occupation on my 457 visa, as you said, that won't be a smart move.
I thought/hoped that if I pass the skills assessment for marketing specialist (which I will, as I also do all the work listed on there), my company can then nominate me for 186 direct entry PR hoping that immigration would understand it's a unique position i'm in.

If that's not the case and you think this has a 10%-20% (or lower) chance of working, do let me know.

If you think having my nomination refused (before getting to the application stage) would in any way risk my PR application once I've been here 2 years do please let me know.

If the only risk is the money spent on the skills assessment and the nomination, please let me know.

Thanks


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Old 03-06-2017, 07:09 AM
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Quote:
Originally Posted by NHLinden View Post
Thank you both.

Don't feel there was a need to 'gang up' on me...and I certainly wasn't fishing around.
I wasn't ganging up on you.I was just agreeing with Wesley and I never suggested you were fishing around. Sorry if you got that impression.

I do understand what you want to do and why you want to do it, but I can't advise you on such complex matters on a public forum, sorry. Others may be able to share their personal experience with you, but unless they are registered migration agents they can't advise you either.

From the little information provided, I personally think what you want to do is fraught with danger. I'm not a bookmaker, so I can't give you any odds.

A nomination refused for Direct Entry should not have an impact on a Nomination lodged later on under TRT. However, it may raise some flags as to your current position, if you are nominated for a different occupation.

Why not let sleeping dogs lie and wait for the TRT stream application ?

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Last edited by CCMS; 03-06-2017 at 07:14 AM.

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Old 03-06-2017, 08:55 AM
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Quote:
Originally Posted by CCMS View Post
I wasn't ganging up on you.I was just agreeing with Wesley and I never suggested you were fishing around. Sorry if you got that impression.

I do understand what you want to do and why you want to do it, but I can't advise you on such complex matters on a public forum, sorry. Others may be able to share their personal experience with you, but unless they are registered migration agents they can't advise you either.

From the little information provided, I personally think what you want to do is fraught with danger. I'm not a bookmaker, so I can't give you any odds.

A nomination refused for Direct Entry should not have an impact on a Nomination lodged later on under TRT. However, it may raise some flags as to your current position, if you are nominated for a different occupation.

Why not let sleeping dogs lie and wait for the TRT stream application ?
Thanks, all good.

The only reason to insist on doing it now is financial (medicare and other PR benefits) and the fact it would allow for better financial liquidity in our household.

If I wait and go for TRT it would be 18 more months at least of no benefits.
In such case I will apply under sales and marketing manager (my 457 visa occupation) as that would not require a skills assessment.

Will contact your personally if relevant

Thanks


Last edited by NHLinden; 03-06-2017 at 08:57 AM.

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Old 03-06-2017, 08:56 PM
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Straight answer

Quote:
I'm actually tired (financially) of meeting immigration agents/lawyers (met 4 different ones) who won't give me a straight answer after paying them consultation fees unless I pay them for the full package (thousands of $$).
You were given a straight answer and it cost you nothing.

Here are some previous 457-related posts, out of format from being cut and pasted from a pdf file:

1. From a RMA:
DIBP are refusing 457 SBS, nominations and 457s for
any reason
The Department of Immigration and Border Protection
(DIBP) are doing their utmost best to
refuse any component of the 457 application process, but
most of all, 457 nominations.
Example of a large supermarket refusal
A large supermarket with more than 20 staff in a regional
area is trying to sponsor a marketing
specialist. The DIBP have refused the application on the
basis that the salary offered is too low,
at $55,000. However the market salary rates show $50K-
$60K and TSMIT is $53,000. And yet
the DIBP are still saying that $55,000 is too low and have
refused the application without giving a
chance for the sponsor to increase the salary. The sponsor
is more than happy to increase the
salary to whatever the DIBP want it to be as they need the
person badly. See the end of this
article for the interesting salary offered to ACS ICT case
assessors in Sydney city. Proceed to
roll your eyes.
Refusal on 'Genuineness' Criteria
Now let's look at the 'genuineness' criteria. The DIBP have
for a while 'deemed' that a position is
not necessary for the operation of a business and is hence,
not a genuine position. Don't you
just love the word 'deem' in the context of a case officer
and their decisions?
Take the example case of Mr S. Mr S is a man who has
given up a career in his home country
and moved to Australia on a 457 visa in around 2009. Mr S
qualified for permanent residency
(PR) to Australia but the business Mr S was sponsored by
was taken over by another company
with a different ABN. The PR application could therefore not
be lodged. Mr S originally started
on his 457 as a project and programme administrator, but
now to obtain a new 457 visa for the
same job at the second company, he needs to undergo a
skills assessment for the position of
project and programme administrator (the position he
currently holds and has held since
2009). Mr S holds a bachelors degree in nursing from
Indonesia.
Refusal due to PAMS conflicting with ANZSCO
On closer inspection, there is a discrepancy between the
skills assessment requirement
(qualification plus work experience) and ANZSCO
requirement. ANZSCO states that only work
experience is required, and not necessarily a qualification.
In the case of Mr S, the DIBP case officer inflexibly applied
PAMS. Whoever created this rule in
PAMs is probably referred to as the 'PAM GOD' within the
DIBP, such is the size of the brick wall
for applicants and their sponsors. Registered Migration
Agents are getting to the point where
they just tell clients that applying is like gambling and say,
'do you want to go ahead or not?'
Refusal based on 'Training Receipts'
In relation to the Standard Business Sponsorship (SBS) it
is interesting that refusals are coming
through saying there is no evidence that the training
receipt provided has been used to train
Australians, even though the company structure chart
shows that all employees are Australian
citizens. This was previously not happening.
Refusal because a 'Small Business'
It seems that DIBP are prone to refusing small businesses.
The DIBP case officers automatically
assume that the small business owner should do the job
themselves and do not need the
employee or any managerial position. Typical refusals for
small businesses are in the
occupations of Customer Service Manager, Facilities
Manager, Retail Buyer and other
Managerial positions. DIBP case officers, with all their
business management experience in the
real world (cough) assume that the business owners can
carry out these functions on their own,
and hence refuse the applications.
Think about the feeling of a small business owner if they
are forced to do the work themselves
instead of expanding the business do do other upper-level
development on their business. All
because a DIBP case officer says they should be able to.
Case officers are now deciding for
small business owners who and what they need to run their
businesses, stifling business owners
and preventing optimum growth.
Refusals since the DIBP's name change to 'Border Force'
Agents are reporting that since the DIBP changed it's name
to Border Force, their refusal rates
are up as high as 80%. Migration Agents, do not lose
heart. There is now a pattern of refusals
that cannot be ignored. This blog post serves as a line in
the sand and trumpet sound that
something is going on in there. The legislation remains the
same but the way the DIBP handle
and decide assessments is at a completely different level
now.
Refusals because of a disjointed assessment process
The process is now disjointed and haphazard within the
DIBP.
First, 457 applications now go through initial division will
have one case officer look at it and send
a request for further information whenever they are not
satisfied. The requested documents and
extra information are then attached online by the RMA.
The application then moves back to the queue and is then
allocated to a different case officer
who will then make a decision on the information in front
of them. The trend now is that the
second case officer makes the decision without asking for
any additional information.
The following is a typical example of the disjointed
assessment process:
The first case officer asks for extra documents A C and F.
The second case officer refuses the application because B,
D and E do not satisfy them.
The fact that the first case officer did not ask for B, D and
E along with their request for A, C and
F deprives the sponsor / applicant of the opportunity to
provide what is actually needed. The
second case officer requests nothing and therefore
deprives the sponsor / applicant of chance to
have their application/s fairly assessed.
I call this 'case officers working in silos'.
DIBP case officers refusing cases like street rangers fine
cars
DIBP are now acting like street rangers who must book and
fine a target number of cars per
day. The more you fine the more rewarded you are.
The greater scrutiny of 457 visa applications is leading to a
fall in grants. Red tape has gone
mad, with 457 applications even voided because of typos
and spelling errors.
DIBP decisions are hypocritical
It is interesting to note that a full time 'Case Assessor - ICT
skills assessment' position at the
Australian Computer Society in Sydney city (non-regional)
is being advertised on SEEK.com at
$45,000. If that is not a kick in the teeth then what is? I
rest my case.
Westly Russell Registered Migration Agent 0316072 Pinoy Australia Pty Ltd
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2. 07-08-2016, 07:54 AM#5
Mark Northam
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Excellent post, Westly. The carnage in 457 refusals over the last 6-12 months is clear
and unmistakable - I've seen several of the circumstances described in your post. I've
been fortunate enough to be able to successfully turn some of these around via AAT
review, where the apparent prejudice against marketing positions, smaller businesses,
etc seems to be less, perhaps due to the difference in training and accountability
between a case officer and an AAT Member, but it's a huge cost and time imposition on
small businesses to have to go through the visa application AND review process.

************************************************** ********************************

As I have repeatedly advised: do NOT rely entirely on advice from an employer, or agent acting for an employer. Had you been properly advised in the first place, you could most likely have avoided some of the issues you now face.

All the best with whatever you decide to do.

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